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Just and Unjust Leaks: When to Spill Secrets

All governments, all political parties, and all politicians keep secrets and tell lies. Some lie more than others, and those differences are important, but the practice is general. And some lies and secrets may be justified, whereas others may not. Citizens, therefore, need to know the difference between just and unjust secrets and between just and unjust deception before they can decide when it may be justifiable for someone to reveal the secrets or expose the lies-when leaking confidential information, releasing classified documents, or blowing the whistle on misconduct may be in the public interest or, better, in the interest of democratic government.

Revealing official secrets and lies involves a form of moral risktaking: whistleblowers may act out of a sense of duty or conscience, but the morality of their actions can be judged only by their fellow citizens, and only after the fact. This is often a difficult judgment to make-and has probably become more difficult in the Trump era.

Lies and Damned Lies

A quick word about language: “leaker” and “whistleblower” are overlapping terms, but they aren’t synonyms. A leaker, in this context, anonymously reveals information that might embarrass officials or open up the government’s internal workings to unwanted public scrutiny. In Washington, good reporters cultivate sources inside every presidential administration and every Congress and hope for leaks. A whistleblower reveals what she believes to be immoral or illegal official conduct to her bureaucratic superiors or to the public. Certain sorts of whistle-blowing, relating chiefly to mismanagement and corruption, are protected by law; leakers are not protected, nor are whistleblowers who reveal state secrets.

Before considering the sorts of official deception where the stakes are high and the whistleblower’s decisions and the public’s judgment of them are especially difficult, it’s important to look at the way secrets and lies affect everyday politics, where the dilemmas are simple-and, most of the time, not much is at stake. Consider the many politically engaged men and women who insist that they are not running for office even while they are secretly raising money and recruiting help for a campaign. They don’t want assaults on their records to begin before they have developed the resources they will need to counterattack. Citizens expect deception of this sort and commonly see through it: the practice is tolerable even if it is not fully justifiable.

But what about a candidate who tries to conceal political positions she has held in the past or who lies about her policy commitments for the future? Someone inside the candidate’s campaign who exposes such lies is disloyal, but the disclosure is certainly not unjust. The leaker is a good citizen even though she may not be a desirable colleague in a conventional political enterprise.

Now imagine a politician who is particularly ruthless: she wins the election and then uses the power of the government to destroy records of her previous actions, removing documents from archives and threatening people who know too much. Anyone breaking the silence or leaking the documents would be a public hero-and a welcome colleague to the vast majority of citizens who are sure that they would never destroy records or threaten anyone. Self-aggrandizing deception and ruthless attempts to cover it up invite moral exposure.

But now consider a politician who shouts lies at election rallies and solicits money from unsavory characters in order to defeat a particularly awful opponent-a neo-Nazi, for example, who threatens to dismantle the institutions of democratic government. Here is a politician with dirty hands. She has gotten her hands dirty for a good cause-but the good cause doesn’t wash them clean. She is a lying and possibly corrupt politician. Still, I wouldn’t defend someone inside her campaign who exposed the lies or revealed the source of the campaign funds and claimed something like a Kantian categorical imperative. “I had to do it,” the leaker might say. “No, you didn’t,” I would respond. Lying to one’s fellow citizens and seeking funds that the candidate doesn’t dare talk about are certainly practices that should not be generalized. If all candidates acted in that way (and far too many do), democracy itself would be at risk. But if democratic institutions were already at risk, most citizens would want to make an exception for a politician they were sure would defend those institutions-even if she did not adhere to democratic norms while seeking office.

The Secret Sharer

Government secrets and deceptions are equally common but often harder to judge than the secrets and deceptions of individual candidates or elected officials. A relatively easy case can help establish some of the contours. It was militarily necessary and therefore justified for the U.S. government to keep the date of the 1944 D-Day invasion secret from the Germans and, in order to ensure secrecy, to withhold the information from almost everyone else, too. Governments justifiably conceal such information from anyone who does not need to know it. Similarly, Washington’s and London’s efforts to deceive the Germans about the location of the invasion were also justified, as were all the lies that officials told as part of those efforts. Providing that information to the press would not have been a good thing to do; in fact, someone who revealed it would probably have been charged with treason.

But contemporary U.S. military operations often do invite whistleblowing-as in cases in which the people being kept in the dark are not U.S. enemies, who know a good deal about what’s going on since their operatives or soldiers are already engaged with American ones. Rather, it’s the American people who don’t know. Think of drone attacks or special operations that the public has never been told about, in places that most Americans have never heard of; recent U.S. military activities in Niger offer a good example. Soldiers die, and officials struggle to explain the mission-and, with even greater difficulty, the reasons for concealing it in the first place. In the wake of such incidents, it’s plausible to argue that the truth should have been revealed earlier on by someone with inside knowledge. The whistleblower in this case would be a good citizen, one might argue, because the use of force abroad should always be the subject of democratic debate. Still, such a disclosure might not be justified if the operation was defensible-necessary for national security, for example, or intended to help people in desperate trouble-and if blowing the whistle would shut down any prospect of success. A disclosure might also be unjustified if it put the lives of U.S. operatives or armed forces at risk. Government officials usually claim that both the operation and U.S. personnel have been endangered. The case at hand, they regularly insist, is just like D-Day.

But U.S. leaders often choose secrecy for a very different reason: they fear that an operation would not survive public scrutiny or a democratic decision-making process. Or an operation has been debated and democratically approved but has taken on a different character in the field. Mission creep is common and results in an entirely new mission, different from the one that citizens debated and Congress voted on. The new mission may be strategically and morally justifiable, but the democratic process has been cut short or avoided altogether. If the operation is kept secret, however, Americans don’t know that it hasn’t been democratically authorized; they don’t know that it is going on at all. And obviously, they can’t weigh official justifications, since they have never heard a government official justify the operation.

By contrast, a potential whistleblower knows that the operation is going on and that it hasn’t been democratically authorized. But who is she to judge its strategic or moral value? In recent years, many government whistleblowers have been very young people-members, perhaps, of a generation of “digital natives,” who believe that everything should be revealed. But government employees and contractors take oaths or sign agreements that commit them to obey secrecy rules; their superiors and fellow workers trust them to protect the confidentiality of their common enterprise, whatever it is.

If the enterprise is clearly illegal or monstrously immoral, a government employee or contractor should certainly break that promise, violate the trust of her coworkers, and blow the whistle. Officials or operatives engaged in illegal or immoral activities don’t deserve her protection. This argument is similar to one often made in the case of humanitarian intervention: if a massacre is going on, anyone who can stop it should stop it, regardless of the costs imposed on the killers. If the U.S. government is engaged in an illegal and immoral operation, anyone who can stop it should.

Consider a rough analogy. U.S. soldiers are required by international law and by the Uniform Code of Military Justice to refuse to obey illegal commands-and they should assume that monstrously immoral commands are always illegal. Discipline and obedience are more crucial to a military than they are to a civilian bureaucracy, and yet soldiers are commanded to disobey illegal orders even on the battlefield. Citizens might excuse a soldier who obeyed an illegal order under coercion or who evaded rather than defied the order-as did the U.S. soldiers at the 1968 My Lai massacre in Vietnam who shot into the air, deliberately missing the civilians they had been ordered to kill. There are civilian equivalents of this kind of evasion, such as slowing down the work required to prepare for an operation or doing the work so badly that the operation has to be postponed or canceled. Whistle-blowing, by contrast, is closer to deliberate disobedience on the battlefield.

There is a difference between the two contexts, however: a soldier often has to decide whether to obey in an instant; a whistleblower has more time. Bureaucracies move slowly, so a whistleblower, thinking about a clearly illegal or immoral operation, can appeal to her superiors to stop the operation. She can deliberate at length about the costs of what she is preparing to do. She can talk to coworkers whom she trusts (although there probably won’t be any). Publicly blowing the whistle may mean losing her job and perhaps going to prison. Yet assuming she has exhausted the options for internal dissent, this is her obligation. And if she blows the whistle, her fellow citizens should recognize the value of what she has done, after the fact.

But what if the operation isn’t clearly illegal or morally monstrous? What if there are arguments to support it, and the would-be whistleblower has heard them, even though her fellow citizens haven’t? How can she claim the right to judge the official account of what’s going on and the justifications of her coworkers and superiors, many of whom have more experience than she has? Such a situation is very different from the case of a soldier on the battlefield, who can see pretty clearly the meaning of what she is being ordered to do-who might even look into the eyes of the innocent civilians she has been told to kill.

Whistle-blowing generally involves decision-making under conditions of uncertainty. Americans elect officials and ask them (and their appointees) to make decisions under those conditions. These officials may not be any more qualified than ordinary citizens, but they have been given and they have accepted a charge and the responsibilities that go with it-which include, crucially, the obligation to worry about the consequences of their decisions. Officials have at their disposal a multitude of researchers, analysts, and advisers, who presumably reduce the uncertainty and help with the worrying. By contrast, a whistleblower is usually alone; her uncertainties are private, and the public cannot know how much she worries. Indeed, one of the things the public should be concerned about is how well a whistleblower understands the uncertainties. Is she a good worrier? It can be dangerous when whistleblowers make their decisions on the basis of some ideological fixation or long-standing prejudice. That’s a danger for officials, too-but they are being watched by coworkers (and, to an extent, by Congress and the media), whereas whistleblowers act in the shadows.

A Whistle in the Dark

Does it make a difference if whistleblowers are (or claim to be) conscientious? “Conscience” originally meant what the word suggests: “co-knowledge,” shared, as the early Protestants said, between a man and “his God.” But in the case of a whistleblower, the knowledge is uncertain and limited to the individual: good enough, perhaps, to justify someone’s refusal to serve in the military, but not good enough to justify decisions that affect large numbers of other people. I am sure that many whistleblowers have consciences, but they have to defend their actions in other terms.

If American citizens are good democrats, they will always be suspicious of government officials, and that will make them receptive to the information that whistleblowers provide. But they ought to be suspicious of whistleblowers, too. Citizens may not need to know the information that a whistleblower provides-indeed, the whistleblower might be acting for profit or publicity and not out of a desire for more democratic decision-making or a concern for law and morality. Sometimes, however, whistle-blowing opens a debate that should have started long before and exposes government activities that many citizens strongly oppose.

Imagine a military or intelligence operation that originally made a lot of sense and that the government has successfully defended to the public but that has expanded in ways that U.S. citizens didn’t anticipate and haven’t been told about. The operation now requires a degree of force far greater than officials had originally planned for, and its geographic range has expanded. The potential whistleblower knows what is going on, and she knows that there hasn’t been anything resembling a democratic decision. Is that enough knowledge to justify revealing details about the operation to the media? Probably not: she has to make some judgment about the character of the expanded operation, and she has to consider the possible consequences of her revelations-and she is, remember, no better a judge than anyone else.

Arguably, the goal of empowering citizens by supplying them with crucial but secret information justifies whistle-blowing-as long as there are good reasons to believe that secrecy isn’t a legitimate requirement of the mission and as long as the revelation results in no negative consequences for U.S. personnel in the field. Those two qualifications, however, will probably mean that whistle-blowing can- not be justified in many cases. But now imagine that the expanded operation involves terrible brutality or potential danger to civilians abroad or in the United States. And the whistleblower believes that ordinary Americans would recognize the brutality or the danger, and so she isn’t merely acting on her own judgment: she is assuming that most of her fellow citizens would judge the situation in the same way-and giving them the chance to do so.

This is the best way to think about whistle-blowing: it involves a kind of moral risk-taking, and it can be justified only after the fact, if other citizens recognize its morality. Of course, its morality will always be contested, with government officials arguing that an important mission has been undercut and that agents in the field have been endangered. This might be true, or it might be a lie, which would justify further whistle-blowing. The whistleblower herself is counting on her fellow citizens to defend her judgment-to affirm it, in fact, and say, “Yes, this is an operation that we should have been told about, and it is one that we would have rejected.” If most of her fellow citizens agree-or, rather, most of those who are paying attention, since majority rule would not work here-then exposing the operation was likely justified.

The case is the same if U.S. citizens are both the objects of the operation and the ones from whom it is being concealed. The bestknown contemporary American whistleblower, the former National Security Agency contractor Edward Snowden, revealed the largescale surveillance of Americans by their own government. He bet that most of his fellow citizens would not think that the danger they faced was great enough to warrant such a massive invasion of their privacy. With some difficulty, I can imagine circumstances in which largescale secret surveillance by an otherwise democratic state might be justifiable or at least defensible. But what Snowden revealed was an operation that could not be justified by any actually existing danger; this was something that American citizens needed to know about. Unfortunately, however, Snowden revealed much more than what Americans needed to know-and not only to his fellow citizens: in addition to sharing secrets about the surveillance of American citizens with journalists from The Washington Post and The Guardian, he provided the South China Morning Post with information about U.S. intelligence operations against non-American targets in mainland China. That disclosure put Americans at risk, and Snowden had no reason to believe that what the United States was doing in China was either illegal or immoral-or anything other than routine.

Judgments in cases like this one will obviously be shaped by political views, but not, one hopes, by partisan loyalties. Many liberals and Democrats, along with some conservatives and a few Republicans, condemned the domestic surveillance that Snowden revealed and defended his decision to do so. The first year of the Trump administration, however, has seen many leaks that have derived from and invited partisanship. Consider the leaked details of the president’s May 2017 conversation with Russian officials in the Oval Office, after he had fired fbi Director James Comey, who had been investigating whether Donald Trump’s election campaign had coordinated with the Kremlin. “I just fired the head of the fbi. He was crazy, a real nut job,” Trump said, according to a source quoted by The New York Times. “I faced great pressure because of Russia. That’s taken off.” The Washington Post reported that during the same meeting, Trump shared highly classified information with the Russians that “jeopardized a critical source of intelligence on the Islamic State.” The leakers to the Times and the Post certainly meant to raise questions about the president’s competence on foreign policy. Americans who already doubted Trump’s abilities welcomed the leak. The president’s supporters obviously did not.

There is no way to make an objective judgment here-not, at least, about the leakers. But the journalists who reported this and many other leaks, and who worked hard to make sure of their accuracy, were doing their job and ought to be commended. They did not confront a moral dilemma. Leaks of this sort are grist for the mill of a free press.

Bureaucratic Outlaws

As for whistle-blowing, as opposed to leaking, a truly detached and fully informed observer would probably be able to make an objective judgment about any particular revelation. But that sort of judgment isn’t likely in the fraught world of politics and government-although a consensus might take shape, slowly, over time, as in the case of the Pentagon Papers: it seems likely that most Americans have come to believe that the military analyst Daniel Ellsberg did the right thing in sharing the documents with the press. Whistleblowers such as Ellsberg appeal to their fellow citizens, and there really isn’t any further appeal to make. If the citizens don’t agree among themselves about the justifiability of the disclosure, there can be no definitive verdict.

But suppose that most Americans recognize the brutality or the danger that has driven the whistleblower to act. Her action was justified, but she has violated the commitments she made when she took her job, and she may have broken the law. When ¡raldæ re diüotey an illegal order, they are in fact obeying the official army code. But there is no official code that orders civil servants to refuse to keep secrets about an illegal or immoral operation. Soldiers are obligated to disobey; civil servants are not obligated to blow the whistle. They are, however, protected from official retaliation and punishment by the Whistleblower Protection Act of 1989 if they reveal a range of illegal government actions: gross mismanagement, the waste of public funds, or policies that pose a substantial and specific danger to public health and safety.

If whistleblowers are fired or demoted for revelations such as those, they can file an appeal to the U.S. Merit Systems Protection Board. These appeals are most often denied-but not always. In 2003, Robert MacLean, an employee of the Transportation Security Administration, told an MSNBC reporter that in an effort to reduce spending on hotels, the TSA would be removing air marshals from many long-distance flights. He was subsequently fired. After appealing the decision-first to the MSPB, then to a federal appeals court-he was finally reinstated in 2013. The Supreme Court upheld that decision in 2015. It was a rare judicial victory for whistle-blowing.

But blowing the whistle on government action abroad or on securityrelated surveillance at home isn’t protected by the Whistleblower Protection Act. And revealing classified information is not legal even if public health and safety are at issue. If a whistleblower reveals secrets that the government doesn’t believe should be revealed, she has broken the law, regardless of her intentions or public sentiment about her actions. She is a disobedient civil servant, a bureaucratic outlaw.

Citizens might well consider her action a form of civil disobedience. But an act must meet certain conditions for that term to apply. First, the whistleblower must have tried to convince a superior that the government’s operation was illegal or immoral. Before going outside the government, she must have done the best she could inside, among her coworkers. Second, she must act in person and in public, without any attempt to hide who she is-even though this means that she won’t see any more secrets. Many leaks can come from a single concealed leaker, but whistle-blowing is almost certainly a one-time act. If internal dissent doesn’t work, then going public is a kind of principled resignation. Third, the whistleblower must take responsibility for the revelation she has made; she must not hand secret documents to agents about whose subsequent behavior she can’t be reasonably confident. She has a purpose for blowing the whistle, and she has to do her best to make sure that her purpose, and no other, is served. Snowden initially chose The Guardian, The Washington Post, and The New York Times (among other media outlets) as venues for his leaked secrets, and this seems the right kind of choice since these are newspapers whose publishers have had, along with a desire to sell papers, a longstanding commitment to democratic government. But Snowden showed less careful judgment in choosing to share information with the South China Morning Post, an organization that he had no reason to believe was committed to democratic decision-making in the United States.

A similarly flawed judgment also affected the case of another wellknown American whistleblower, Chelsea Manning, who in 2010 provided a massive trove of classified diplomatic cables to WikiLeaks. In contrast to newspapers with long records of public service, WikiLeaks is the wrong kind of intermediary between a whistleblower and the American people. Its directors may or may not have democratic commitments, but they also have narrowly partisan and personal aims, about which the public has learned a great deal in recent years.

Tough Calls

A civil whistleblower is making the same appeal to her fellow citizens that civil rights activists in the 1960s made-in similar defiance of the law and with a similar willingness to accept legal punishment. Whistleblowers can and probably should be punished for revealing state secrets, even if the secrecy is unjust. Judges and juries should try to make the whistleblower’s punishment fit her crime, and her crime must be weighed against the government’s subversion of the democratic process and the illegality and immorality of the revealed operation: the more significant the subversion and the greater the brutality or danger, the milder the sentence should be.

There must be some punishment for people who break secrecy laws, to serve justice when someone blows the whistle recklessly and to deter others from doing so. The fear of punishment focuses the mind and forces a potential whistleblower to think hard about what she is doing. Citizens should respect a whistleblower’s willingness to pay the price of her disobedience, and at the same time, they should make their own judgments about whether what she did was right or wrong. Her action may require a complicated verdict: for example, perhaps she was right to open the democratic debate but wrong in her assumption of what the outcome of the debate should be. In any case, the public owes her a reflective response-not knee-jerk hostility or knee-jerk support.

Democracies live uneasily with secrecy, and governments keep too many secrets. Greater transparency in government decision-making would certainly be a good thing, but it has to be fought for democratically, through the conventional politics of parties and movements. Whistle-blowing probably does not lead to greater transparency; in the long run, it may only ensure that governments bury their secrets more deeply and watch their employees more closely. Still, so long as there are secrets, whistle-blowing will remain a necessary activity. Whistleblowers have a role to play in a democratic political universe. But it is an unofficial role, and one must recognize both its possible value and its possible dangers.